The case of Erlick v.
Menzes (1999) 21 C.4th 543 involved a "dream home" built on an ocean
view lot. Two months after occupancy rain saturated the bedrooms and left 3 inches
of water in the livingroom. Nearly every window leaked. The garage ceiling
liquified and fell in chunks. Structural engineers found serious construction
errors. The Erlicks sued the builder Menzes and the San Luis Obispo County
Superior Court awarded them $406,700 cost of repairs, $100,000 for emotional
distress and $50,000 for physical pain and suffering. The Court of Appeal
affirmed the award.
The California Supreme
Court affirmed as to the cost of repair but reversed the award for emotional
distress. The court held that negligent breach of contract is not sufficient
alone to support a tort action. To find the builder liable for emotional
distress the breach of contract must be accompanied by fraud or the party must
realize the breach will cause serious harm in the form of anguish, etc.
Note: Damages for
defective construction are limited to repair costs, lost use and/or relocation
expenses or the diminution in value.
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Gammoh v. City of
Anaheim (1999) 73 C.A.4th 186 involved a plaintiff, Gammoh, who leased property
in an industrial zone off the Riverside Freeway to open a cabaret named
"Funtease Theater", and applied for an adult entertainment permit.
While the application was pending, the city amended its adult entertainment
ordinance to make a portion of the industrial zone off limits to adult
businesses with the theory that it should be redeveloped for upscale industry.
The city also prohibited adult businesses within 100 feet of a freeway.
While the Orange County
Superior Court entered judgment for the city the Court of Appeal reversed
holding the denial of a permit based on rezoning applied retroactively to
Gammoh was unconstitutional as was the 100 foot limitation as to the freeway.
The city was ordered to approve Gammoh's application and the case was remanded
to trial as to Gammoh's civil rights damages.
Note: This was Anaheim's
second failure to enact an adult business ordinance. The first one failed
because it granted discretion to the planning commission to grant or deny
permits which was held to be an unconstitutional prior restraint of free
speech.
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Lamden v. LaJolla Shares
Condominium Homeowners Association (1999) Daily Journal D.A.R. 8076, 99 C DOS
6358 (Aug. 9, 1999).
This California Supreme
Court case involved a homeowner association that decided to spot treat for
termites rather than fumigate the structures. A homeowner brought suit for
breach of CC&R's since the association was responsible for repairs and
maintenance of common areas.
The Supreme Court,
overruled the Court of Appeal maintaining that courts should defer to the
homeowner association as to the good faith of decisions involving maintenance
and repair. Members who disagree with association decisions do not have a cause
of action. Associations can still be liable for overreaching or failure to
enforce
CC&R's.
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